1. Evolution of birth policy after the founding of New China
1949, at the beginning of the founding of New China, fertility was encouraged.
1954-1970, from supporting birth control to restraining childbirth and vigorously promoting late marriage.
1971-1981, from emphasizing family planning to family planning terms included in the constitution.
1982, "family planning" was established as the basic national policy.
On December 29, 2001, the " Population and Family Planning Law " was issued. "Family Planning" was officially a legal system from national policies and was subject to constitutional constraints. It will come into effect on September 1, 2002, encourage late marriage and late childbirth, encourage a couple to have a child, and reward " Only Child Parents' Honorary Certificate ".
The first amendment to the Population and Family Planning Law on December 27, 2015, Article 18: The state advocates that a couple have two children. It will come into effect on January 1, 2016, and the "comprehensive two-child" system will be officially implemented.
The Population and Family Planning Law was revised and issued for the second time on August 20, 2021. Article 18: The state advocates marriage and childbirth at the right age and good birth. A couple can have three children. Article 25: The state supports the establishment of parental leave in places with conditions. Article 26: The state protects women's legitimate rights and interests in employment and provides employment services to women whose employment is affected by childbirth.
2. Guiding opinions on birth policy in Hubei and implementation
Since the second revision of the "Population and Family Planning Law", more than 20 provinces across the country have successively revised the Population and Family Planning Regulations, actively respond to the country's birth policy, and provide unified opinions and guidance on specific issues of concern to the people.
At the same time, the " Hubei Province Population and Family Planning Regulations " passed on December 1, 2002 was revised and five times after one revision and five revisions, and the latest revisions were made on November 26, 2021. Articles 31 and 33 of the companies and employees have attracted widespread attention and heated discussions. The main changes are as follows:
From the above changes, Hubei Province actively implements fertility support measures in order to optimize the province's birth policy, and encourages the establishment of a corporate holiday labor cost sharing mechanism jointly undertaken by the government, enterprises and individuals.
1. Maternity leave is adjusted from 128 days (98 days in the state stipulated + 30 days increase) to 158 days (98 days in the state stipulated + 60 days increase), and spouses still enjoy 15 days of nursing leave.
2. Parents of infants and young children under three years old will enjoy a total of 10 days of parental leave each year.
3. Couples who meet the conditions can extend their wedding leave (3 days +?) outside the state-standard marriage leave.
4. For the supporter and dependents who take care of disabled or sick elderly people in hospital, the employer shall give 10 days of nursing (15 days for only children). Holidays above
are deemed to be attending, and the salary and bonus will be paid.
3. Marriage leave, maternity leave ( birth leave ), parental leave, nursing leave and other FAQs (taking Hubei Province as an example)
On December 6, 2021, the Office of the Hubei Provincial Health Commission answered questions related to the "Hubei Province Population and Family Planning Regulations" and actively responded to the hot issues of concern to the masses during the implementation of the Regulations. The author combined relevant regulations and practical experience to sort out the following:
01 Marriage Fare: 3 days +
February 20, 1980 "Notice of the State Administration of Labor and the Ministry of Finance on the Issues of Marriage and Bell Leaves and Travel Leaves for State-owned Enterprises" pointed out: "The notice issued by the former Ministry of Labor on June 1, 1959 stipulated that if employees of enterprises and units are within three working days, their wages will be paid. Since the trial of this method, some units and employees have reported that both parties are not working in the same place when the employees get married, and the employees need to go to another place to take care of the funeral when the employees die. Because there is no travel leave, it has brought some practical difficulties to the employees.After research, the following notice is made on the issues of employees taking wedding and funeral leave and travel leave: 1. When the employee gets married or the employee's immediate relatives (parents, spouses and children) die, they may be approved by the administrative leaders of the unit according to the specific circumstances and give one to three days of wedding and funeral leave at the discretion. 2. If both parties do not work in the same place when the employee gets married; if the employee’s immediate relatives in another place die, they can give him a trip leave based on the distance. 3. During the approved wedding and funeral leave and distance leave, the employees' wages shall be paid. All the vehicles, ship fares, etc. along the way are borne by the employees themselves. "The above provisions are the source of the marriage leave period, and some regions have extended the marriage leave time based on local actual conditions.
Hubei Province deleted the late marriage leave 15 days in the "Hubei Province Population and Family Planning Regulations" revised in 2016, and the marriage leave became 3 days. On November 26, 2021, it added a new revision: Couples who meet the law can extend their marriage leave outside the state's marriage leave. The specific measures will be formulated by the provincial people's government. How to extend it specifically, wait for notice.
Employers can clarify the information that employees need to provide for marriage leave in the company's rules and regulations, and standardize the marriage leave approval process of the unit.
02 Maternity leave (birth leave): 98 days + 60 days = 158 days
①The difference between maternity leave and maternity leave
maternity leave refers to Leave benefits for working women before and after their childbirth period.
Maternity leave, also often referred to as family planning leave, refers to paid leave enjoyed by men and women during family planning. In a broad sense, it includes marriage leave, maternity leave for female employees, birth control ring in the uterus, birth control ring, family planning abortion and induced labor.
In fact, the two are very different, but the applicable legal basis is different. Maternity leave is based on the "Hyper Labor Protection Regulations of Female Employees " , Maternity leave is based on the "Population and Family Planning Regulations" of each province. The maternity leave uniformly stipulated by the state is 98 days. The additional maternity leave added by each province and city is widely understood as maternity leave. Maternity leave should be used continuously with maternity leave, including weekends, but when statutory holidays can be postponed; maternity leave is directly included in the national statutory holidays.
②How to take maternity leave correctly (maternity leave)
maternity leave includes 15 days of prenatal leave and ordinary maternity leave (158- 15) and special circumstances (miscarriage and difficult to give birth to multiple births), the time for employees to apply for approval before the due date or the time after the due date is postponed can be treated as sick leave. In practice, enterprises and employees can calculate the overall time more and do not consider whether it starts 15 days before the delivery.
maternity leave period shall be calculated continuously from the date of approval of leave, including national statutory holidays and rest days. Maternity leave is deemed to be attending, and wages and bonuses shall be paid. If it has ended before November 26, 2021, no compensatory leave will be given; if it is on vacation or is preparing for vacation, Handle in accordance with the new regulations.
03 Parental leave: Parents of infants and young children under 3 years old (natural year), each person has a total of 10 days per year
① The difference between one year and natural year
In the parental leave usage cycle, some provinces (Beijing, Shanghai) use one year as the standard, some provinces (Sichuan) use natural year as the standard, and Hubei Province has already shown It is indeed based on the natural year.
is calculated based on the natural year. In theory, "parental leave" can be taken four times. If the child was born on November 26, 2021, the couple can take a leave in 2021, 2022, 2023, and 2024, but the last time must be taken within 36 months (inclusive), that is, before November 25, 2024, the child will no longer enjoy it.
is calculated based on the year of the year. If the child was born on November 26, 2021, the couple will be in 202 From November 26, 2022 to November 25, 2022, 2022 to November 25, 2022 to November 25, 2023, and from November 26, 2023 to November 25, 2024, each person will enjoy parental leave of the specified time.
②How to calculate the term of parental leave and how to determine the salary.
Parents of infants and young children under three years of age will enjoy a total of 10 days of parental leave each year, and will be calculated according to the natural year from the date of their children's birth.The period of parental leave is determined according to the situation where the couple actually have infants and young children under the age of 3 during the year, and is not enjoyed according to the number of children.
Parental leave does not include national statutory holidays, rest days, and occupational leave. Parental leave is deemed to be attending, and wages and bonuses are paid.
04 Nursing leave: 15 days of spouse nursing leave + 10 days of nursing time (15 days of only children)
Women who have children in accordance with laws and regulations will enjoy 15 days of nursing leave.
Nursing leave does not include national statutory holidays, rest days, and occupational leave. During nursing leave, it is deemed to be attending, and wages and bonuses will be paid.
For the caregiver or dependents who care for disabled or sick elderly people, the employer shall provide convenience and provide a cumulative amount of at least 10 days of nursing time per year; for the caregiver of disabled or sick elderly people who care for disabled or sick elderly people, the cumulative amount of at least 15 days of nursing time per year.
Nursing time does not include national statutory holidays, rest days, and occupational leave. During nursing, it is deemed to be attending, and wages and bonuses will be paid.
4. The holiday labor cost sharing of government, enterprises and individuals under the three-child policy is a family planning policy implemented by the country to actively respond to population aging. According to the answer to the birth policy of Hubei Provincial Health Commission , "A couple can have three children" is calculated based on the number of children, non-fertility parity. Children born before remarried couples are not included in the current family's children's total calculation. Calculated based on the number of children born together by the couple after remarriage, three children can be given birth. When a couple has another child, the adopted children are not included in the number of children born.
In the context of relaxing three children and encouraging childbirth, localities have extended birth leave and increased parenting leave, actively responding to and supporting the country's three-child policy. However, the cost problems brought by birth leave, parenting leave, nursing leave, etc. cannot be solved by enterprises. Hubei Province clearly stipulates that "encourage the establishment of a corporate holiday labor cost sharing mechanism jointly borne by the government, enterprises and individuals". There is no specific details on how to share the three reasonably, but we can focus on the following aspects:
Government: Formulate a scientific, reasonable and enforceable holiday system from the legal and institutional level to help employers and workers form a unified consensus in the conflict of operating rights and rest right , and ensure the fairness and authority of the holiday system. Some scholars have proposed that when the time is ripe in the future, a special "family vacation law" can be formulated to build a family vacation legal system with maternity leave (including paternity leave ), family care leave and parenting leave as the main body, gender equality right and marriage and family security as the constitutional basis, and family friendship as the basic concept. This is worth looking forward to.
In addition, in terms of holiday application, benefits payment, rights relief, etc., the government can provide specific implementation measures to support enterprises in implementing vacation policies through tax and fee reductions, policy subsidies, and the introduction of special funds or allowances. For example, if maternity leave is extended to 158 days, will maternity allowance be extended accordingly based on the financial affordability? Can cost expenditures such as parental leave and nursing leave be unified through special funds paid by the government, enterprises and individuals, etc.
Enterprise: For enterprises, what is most needed is to build a fair and reasonable holiday cost sharing mechanism. ’s past practical experience shows that the practice of “businesses pay for” is not conducive to stimulating the execution momentum of enterprises. Instead, it forces enterprises to transfer holiday costs through various means, and even causes enterprises to avoid women of childbearing age, trigger employment discrimination, and increase family burdens, making parental leave the same as previous nursing leave, making it useless and difficult to truly implement.
Some people suggest that the salary during parental leave is included in the scope of maternity insurance fund undertaking to gain recognition and execution by enterprises. However, the author believes that this is not just the difference between paid leave and unpaid leave . companies are more concerned about how workers' vacation behavior minimizes the impact on the normal production and operation of enterprises. This requires enterprises to conduct scientific design when the system is implemented, make full use of the enterprise's employment autonomy, and not infringe on workers' basic leave rights. For example:
1. How to apply to the employer when a worker meets the specific leave conditions stipulated by law, how long should it be notified in advance, oral or written, long-term or short-term, general or emergency, how to misalign between departments or positions;
2. What necessary supporting documents do workers need to provide to the enterprise;
3. Is the employer's review of the supporting documents formally or substantively? Check;
4. Whether the employer has substantive approval authority for the above-mentioned holidays, and how to scientifically cooperate with the approval authority for the leave;
5. Whether the employer has the right to refuse to approve a leave, and under what circumstances can the employee's application be rejected;
6. Whether the employer's rejection of approving a leave requires the corresponding legal consequences;
7. What channels do workers seek relief, etc.
people: Workers under the three-child policy face the dual responsibilities and obligations of supporting and caring for parents, raising and educating their children, and have been in the tense contradictions between workplace and family life for a long time. There are already many practical difficulties in their practice of the three-child policy. If the holiday is too short, it is not conducive to physical and mental recovery and parenting care; if the holiday is too long, the continued employment problems of women of childbearing age, job promotion and performance appraisal, salary and service life issues, etc. need to be considered effectively. The seemingly simple and ordinary childbirth may cause a family to be magnificent: economic problems, gender discrimination problems, housing structure problems, child care problems, educational anxiety problems, and the most serious problems are the mental health problems of young parents.
Therefore, what can individuals share in the holiday labor costs under the three-child policy? The author believes that:
is the most important thing to establish a positive and healthy concept of fertility. Reproductive rights is a woman's business, but childbirth is not only a woman's business, it requires the common care of the family and society, and a fertility-friendly society to be nurtured together, such as child-drag services, children's health and food safety issues.
Secondly, uphold the conscience of a kind worker. actively cooperates with the government's childbirth measures and implementation policies, conscientiously abide by the legal and reasonable rules and regulations of the enterprise, does not cause trouble to the government, protects rights rationally in accordance with the law, does not set up a situation for the enterprise, and does not dig holes for the boss.
Finally, the author also hopes that enterprises with conditions can actively respond and actively implement various leave systems under the national three-child policy, which is also an important part of enterprises' fulfillment of social responsibilities and humanistic care. In the short term, various holidays will indeed increase the employment cost of enterprises; but in the long term, it will help enhance corporate image and enhance corporate cohesion. Enterprise managers can also use technical or management means to change their working methods, reduce employment costs, improve work efficiency, and seek change in new ways.
article: Yan Chengcheng (Xinghan Wuhan)
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